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Full-Text Articles in Law

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau Aug 2015

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social ...


The Freedom To Strike In Canada: A Brief Legal History, Judy Fudge, Eric Tucker Feb 2015

The Freedom To Strike In Canada: A Brief Legal History, Judy Fudge, Eric Tucker

Eric M. Tucker

This paper looks at the "deep roots" of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms - to associate, to bargain collectively, and to strike - the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of their review ...


Citizenship In Red And Yellow: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger Sep 2014

Citizenship In Red And Yellow: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Bethany Berger

American Indians and ethnic Chinese played outsized roles in the transformation of citizenship in the late nineteenth century, shaping debates and providing patterns as the geographic, racial, and ideological borders of citizenship hardened and the federal role and discretion in policing them expanded. Today, this transformation influences everything from the treatment of children of undocumented immigrants to tribal land, sovereign, and treaty rights to the status of U.S. island territories. This Article examines these changes and what they meant for the individuals and communities involved through the lenses of Elk v. Wilkins and United States v. Wong Kim Ark ...


What The Actions Of Abe Lincoln Continue To Teach Us Today, Michael Slinger Dec 2013

What The Actions Of Abe Lincoln Continue To Teach Us Today, Michael Slinger

Michael J. Slinger

No abstract provided.


Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson Jul 2013

Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson

Michael P. Johnson

Fifteen Years and Death is a Note that considers a completely novel application of the Double Jeopardy Clause to excessive time on death row. Traditionally, death penalty opponents have attacked the now fifteen-year average wait time on death row as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but this argument has fallen flat time and time again as courts have been reluctant to find merely living in prison to be “cruel” or “unusual.” Most courts do admit, however, that such time on death row does constitute some sort of punishment. As originally imagined, the ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington Dec 2012

American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock Sep 2012

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock Sep 2012

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary ...


The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney Sep 2012

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions ...


The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney Sep 2012

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions ...


The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney Aug 2012

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions ...


Hydropower: It's A Small World After All, Gina Warren Aug 2012

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local communities ...


Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson Aug 2012

Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition ...


An ‘All Of The Above’ Theory Of Legal Development, Larry A. Dimatteo Jun 2012

An ‘All Of The Above’ Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

The paper provides a brief background of Nathan Isaacs, his work, and his theory of legal development. Invariably, when analyzing Isaacs’ claim that history proves that law developments in cycles (status to contract to status) the role of Jewish legal history in the development of his thought will play an important role in understanding his theory. Isaacs’ was that rare scholar knowledgeable in the common law, as well as, civil law. A pragmatic realist, as well as a devote Jew. He was a legal historian and very much a man of the present. He possessed a Ph.D. in Economics ...


Book Review, Christian G. Samito (Ed.). Changes In Law And Society During The Civil War And Reconstruction: A Legal History Documentary Reader. Carbondale: Southern Illinois University Press, 2009. 352 Pages. $29.50 (Paper), Thomas Reed Mar 2012

Book Review, Christian G. Samito (Ed.). Changes In Law And Society During The Civil War And Reconstruction: A Legal History Documentary Reader. Carbondale: Southern Illinois University Press, 2009. 352 Pages. $29.50 (Paper), Thomas Reed

Thomas J Reed

No abstract provided.


Loyola Law School, State Secrets, The American Revolution, The War Of 1812: The Maritime Connections Of The Middle Temple, Allen E. Shoenberger Feb 2012

Loyola Law School, State Secrets, The American Revolution, The War Of 1812: The Maritime Connections Of The Middle Temple, Allen E. Shoenberger

Allen E Shoenberger

The brief article traces the connection of members of the Middle Temple to settlement of the New World, the founding of the United States, and decisions about confiscation of ships and cargoes leading to the War of 1812. Significant figures discussed include Sir Walter Raleigh, Sir Francis Drake and Sir William Scott, Head of the Admiralty Court of Britain during the Napoleonic Wars.


Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer Jan 2012

Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer

Parker Tresemer

Since the end of World War II, federally funded universities and private companies have been an integral part of continued American innovation and technological production. However, like most rational economic actors, universities and private companies are only willing to invest in federally funded technologies if they are guaranteed some sort of exclusive return on their investment. By granting federal contractors exclusive patent rights to their employee’s federally funded inventions, the Bayh-Dole Act provided the necessary incentives for private sector investment in federally funded technologies. However, case law subsequent to Bayh-Dole’s enactment has significantly undermined the system of incentives ...


Book Review, Blackstone In America: Selected Essays Of Kathryn Preyer (Mary Sarah Bilder Et Al. Eds., 2009), David Millon Dec 2011

Book Review, Blackstone In America: Selected Essays Of Kathryn Preyer (Mary Sarah Bilder Et Al. Eds., 2009), David Millon

David K. Millon

No abstract provided.


Shaping The Disclosure Tort: A History Of Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson Dec 2011

Shaping The Disclosure Tort: A History Of Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars have rarely encountered an area such as common law privacy, in which they had a guiding hand over the course of seventy-five years (1890–1965). Since then, however, scholars’ attempts to modify Prosser’s disclosure tort have failed. This article chronicles the early and potent scholarly influence from Warren and Brandeis to Hand, Pound, and Prosser. It continues with recent academic attempts to modify the disclosure tort, none of which has affected the narrow cause of action last touched by Prosser in the Restatement (Second). The article shows that, notwithstanding enormous efforts by some of America’s most ...


Back To The Future Of Regulating Abortion In The First Term, Tracy A. Thomas Aug 2011

Back To The Future Of Regulating Abortion In The First Term, Tracy A. Thomas

Tracy A. Thomas

The year 2011 has been unprecedented in the rate and scope of abortion legislation passed by the states. More bills to prohibit and regulate abortion have passed during the first half of this year than at any time since abortion was legalized. The proliferation of controversial legislation charts new ground of both direct and indirect regulation of abortion, including mandatory ultrasounds prior to abortion, prohibitions after the fetus can allegedly feel pain at twenty weeks, and “heartbeat bills” that ban abortions after the first detectable heartbeat at six weeks. While the accelerated rate of such legislation is surprising, laws designed ...


Representative Self-Government And The Declaration Of Independence, Alexander Tsesis Jul 2011

Representative Self-Government And The Declaration Of Independence, Alexander Tsesis

Alexander Tsesis

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progeny, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress ...


The Tea Party And The Constitution, Christopher W. Schmidt Mar 2011

The Tea Party And The Constitution, Christopher W. Schmidt

Christopher W. Schmidt

This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined ...


America's First Wiretapping Controversy In Context And As Context, Wesley Oliver Dec 2010

America's First Wiretapping Controversy In Context And As Context, Wesley Oliver

Wesley M Oliver

No abstract provided.


How To Teach European Comparative Legal History. A Lund Perspective, Per Nilsén Dec 2010

How To Teach European Comparative Legal History. A Lund Perspective, Per Nilsén

Per Nilsén

No abstract provided.


Law And (Dis)Order: The Struggle For Black Power In Charlotte, North Carolina, 1968-1979 (In Progress), Donald F. Tibbs Dec 2010

Law And (Dis)Order: The Struggle For Black Power In Charlotte, North Carolina, 1968-1979 (In Progress), Donald F. Tibbs

Donald F. Tibbs

No abstract provided.


Redesigning The American Law School, David Barnhizer Aug 2010

Redesigning The American Law School, David Barnhizer

David Barnhizer

In other industries when there is a decline or severe curtailment of the demand for their product we see companies downsizing, laying off personnel, bankruptcies and reorganizations, mergers to create greater economies of scale and even dissolutions. American law schools have to this point been able to operate largely without any required adaptation to the economic realities of demand for their product. For many institutions that “free ride” is ending. It will become increasingly clear that law schools are part of a rigid and intractable business system in the same way that the large firms and solo practitioners are driven ...


Erie's Suppressed Premise, Michael S. Green Dec 2009

Erie's Suppressed Premise, Michael S. Green

Michael S. Green

The Erie doctrine is usually understood as a limitation on federal courts’ power. This Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts. According to Erie Railroad v. Tompkins, a federal court must follow state supreme court decisions when interpreting state law. But at the time that Erie was decided, some state supreme courts were still committed to Swift v. Tyson. They considered the content of their common law to be a factual matter, concerning which federal (and sister state) courts could make an independent judgment. Indeed, the Georgia Supreme Court still ...


Huey P. Newton And Bobby Seale, Donald F. Tibbs, Thomas J. Davis Dec 2009

Huey P. Newton And Bobby Seale, Donald F. Tibbs, Thomas J. Davis

Donald F. Tibbs

No abstract provided.